Reforming Criminal Justice System- Comparison of Old and New Penal Provisions

July 10, 2024
criminal law Bills

By Nihit Nagpal and Akif Abidi

On December 12, 2023, the Lok Sabha passed three criminal law Bills that replaced the procedural and substantive provisions of the Criminal law that were first enacted over 100 years ago by the British. With an effective date of 1st July 2024.

The new criminal law Bills are named the Bharatiya Nyaya (Second) Sanhita Bill, 2023 replacing the Indian Penal Code, 1860; the Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 replacing the Criminal Procedure Code, 1973 and the Indian Evidence Act of 1872 replaced by the Bharatiya Sakshya Adhiniyam (Second) Bill, 2023.

A Quick Recap:

amendments within 15 days
Old Indian Penal Code, 1860 Bharatiya Nyaya (Second) Sanhita, 2023
Provisions 511 358
Additions N/A 31
Deletions N/A 19
Modifications N/A Community Service for 6 offences.
Minimum Punishment for 25 offences.
Imprisonment N/A Increased for 41 Sections
Penalty N/A Hiked in 82 Sections

 

Old Criminal Procedure Code, 1973 Bharatiya Nagarik Suraksha (Second) Sanhita, 2023
Provisions 484 531
Additions N/A 9 Sections and 39 Sub-Sections
Deletions N/A 14
Modifications N/A 177
Explanations N/A 44
Timelines N/A 35 Sections

 

Old Indian Evidence Act, 1872 Bharatiya Sakshya Adhiniyam (Second) Bill, 2023
Provisions 167 170
Additions N/A 2
Deletions N/A 6
Modifications N/A 24

A comparative analysis of dynamic changes in Criminal Laws

  1. Bharatiya Nyaya (Second) Sanhita, 2023 in comparison with Indian Penal Code, 1860

    amendments within 15 days
    Srl. No. Major Points of Change Analysis
    1 Offence of Mob Lynching Incorporated as a sub specie of offence of Murder. This provision incorporates many of the Supreme Court’s observations in the case of Tehseen Poonawallah vs. Union of India.
    However, an important pitfall is failure to identify religion as a ground of mob lynching. This lacunae has the propensity of misuse in application of the relevant provision.
    2. Defined offence of Terrorism, abetment, harboring and conspiracy added. A widened definition of Terrorism has been incorporated in the general law, this covers instances of crimes of financial nature such as counterfeiting of Indian currency notes and coins.
    It also grants discretionary power to police official at the position no lower than Superintendent of Police to decide upon invoking general law or Unlawful Activities (Prevention) Act (UAPA).
    There are concerns that this Section may dilute the seriousness of offence considering Terrorism is a special provision.
    3. Replacing Sedition with Treason One of the most significant changes brought forward by the Penal Code is the deletion of the Section 124A that was called the Prince of IPC by the Mahatma.
    Pursuing upon the recommendations of the Supreme Court, the new Code has deleted this Section whereby disaffection against government was punishable.
    However, critics have described that mere replacing the offence of Sedition with Treason would not be sufficient since the new offence incorporates similar vague words, hence it remains to be seen whether the true dictatorial remnant of colonial law has been shed away or the new offence of treason is just old wine in new bottle.
    4. Variety of Offences such as Snatching, Organized Crime and Petty Organized Crime, definition of cruelty; added. The new offences added are specific in nature and definition which shall allow for the better implementation of law.
    The definitions of the offences also include various illustrative explanations detailing the applicability.
    There is also definition to the word cruelty against a woman by her husband and his relatives, punishable with a jail term of up to three years.
    The term petty organized crime would include trick theft, theft from vehicle, dwelling house, or business premises, cargo theft, pickpocketing, theft through card skimming, shoplifting, and theft of Automated Teller Machine. This is a positive legislative change considering the prevalence of such crimes.
    5. Deletion of section 377(IPC) (Unnatural offences) The Bharatiya Nyaya Sanhita (BNS), 2023 has completely removed the offence of unnatural intercourse with men. Which was defined under section 377 as “carnal intercourse against the order of nature” Deletion of this provision implies that there is no legal remedy for acts of non-consensual intercourse with men.
    6. Section 69 of BNS (Marriage by deceitful means) The new act replacing IPC has added a long awaited provision of sexual intercourse on false pretext of marriage. Through the words “deceitful means” this new provision can be interpreted
    7. Section 103 (Murder) This provision under the new act adds the offence of murder on the grounds of race, caste, or community as a separate offence. This provision has been added after various supreme court’s direction for the same.
    8. Section 111(1)(iii) (Economic Offences) The new act gives definition to economic offences which are mainly focused on the rise digital scams which includes Forgery, Counterfeiting, Hawala Transactions, Mass marketing fraud under the ambit of digital fraud.
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  3. Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 in comparison with Criminal Procedure Code, 1973
    amendments within 15 days
    Srl. No. Major Points of Change Analysis
    1. Time Lines for Verdict, Charge sheet filing Various new time lines have been provided for in the new Criminal Bill to ease the worries of the litigants. The new code provides for a timeline of 30-45 days to pronounce the verdict from the time of closure of arguments. In the previous CrPC, no such timeline was enunciated and it vaguely provided that verdict to be declared either immediately or “at some subsequent time.”
    In the same spirit, there are provisions in the new Criminal bill, mandating maximum of two adjournments in the trial.
    Furthermore, a timeline for discharging persons accused in a case, if the complainant fails to appear in court has been provided; for 30 days. This was not mentioned in the CrPC earlier.
    Another important development is that the charge sheets will have to be filed within 180 days and the magistrate will have to take cognizance of it within 14 days.
    The police has been mandated to register an FIR within three days if it finds merit for it in a preliminary investigation.
    2. Provision of Zero FIR Now the victim can go to any police station and lodge a zero FIR and it will have to be compulsorily transferred to the concerned police station within 24 hours.
    Along with this, a police officer has been designated in every district and police station who will prepare a list of the arrested people and inform their relatives.
    Yet, the effective implementation remains to be seen considering the Hon’ble Supreme Court had earlier as well directed police officials to register zero FIR but at grass root level the same has not translated effectively.
    3. Community Service as Punishment This is a welcome and novel method of lessening the burden upon the criminal justice system and in line with the recommendations of the Law Commission.
    Community service is defined as ‘work which the Court may order a convict to perform as a form of punishment that benefits the community, for which he shall not be entitled to any remuneration.’ It can be imposed by the Magistrate of the First or Second Class.
    Various offences such as Public servants unlawfully engaged in trade, theft of property less than Rs 5,000, and public intoxication shall be punished with community service.
    This is an important step towards achieving reformative system of justice in the society.
    4. Handcuffing This has been permitted by the new criminal bill to prevent the escape of individuals accused of serious offences and ensure the safety of police officers and staff during arrests.
    However, the act of putting handcuffs has been decried as violation of human rights by the Hon’ble Supreme court and various International humanitarian organization. Hence, it remains to be seen whether this provision will face challenge to its constitutionality.
    Further, in another significant change, the power of the police to use handcuffs has been expanded beyond the time of arrest to include the stage of production before court as well.
    5. More discretion to Law Enforcement Officials like Police, Directorate of Prosecution. The new criminal bill has been criticized to a good measure for providing Police/Law enforcement officials with greater discretion.
    For instance, the officer not below the rank of Superintendent of Police shall decide whether accused to be tried under UAPA or BNS. This has propensity to increase misuse.
    The police has also been given power to keep accused in Police custody beyond the initial 15-days of arrest. However, this is clearly in violation to various Supreme Court judgments such as Central Bureau of Investigation v. Anupam J. Kulkarni (1992).
    6. Changes in language used Various Terms like lunatic, insane, idiot, British India, Queen, British Calendar; have been removed leading to usage of more sensitive and appropriate language.
    The new bill also provided for ‘intellectual disability’ as a ground while considering competence to stand trial.
    7. Section 105 Search and seizure through the means of audio and Video This provision makes it mandatory for the police officers to make an audio-video recording of the search of a place or taking possession of any article, property or thing and the seizure list containing the list of items seized in the course of search and seizure, thereby forwarding the recording to the authorities without delay.
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  5. Bharatiya Sakshya Adhiniyam, 2023 in comparison with Indian Evidence Act, 1872
    amendments within 15 days
    Srl. No. Major Points of Change Analysis
    1. Admissibility of electronic evidence. New Bill has provided for a Comprehensive certificate for submitting electronic evidence in schedule.
    The definition of authorized signatory of the certificate has been widened, now operators/managers of the electronic device shall also have the power to sign on the certificate. It provides that “person in charge of the computer or communication device and an expert” is competent.
    2. Acceptance of proceedings via audio-visual means There has been a proactive push to give statutory recognition for allowing the reading out of charge to the accused, hearing on discharge, examination of witnesses, and recording of evidence in audio-visual means.
    3. Requirement for admissibility of digital evidence Section 63 of the BSA, 2023 outlines the requirements and procedures for the admissibility of electronic evidence in legal proceedings. The key aspect of this section is the emphasis on the necessity of a certificate to accompany electronic evidence. This certificate serves as a verification tool, ensuring the authenticity and integrity of the electronic evidence presented in court.

Current Scenario

In the most recent news these new laws have faced a strong backlash from bar associations, lawyers and even judges along with many political leaders all over the country. The famous opinion for these laws has been that these laws are “Anti-democratic”, “Anti-people”. West Bengal bar association even observed ‘Black day’ on 1st July 2024 that is the effective date of these laws. Bar council of India has appealed to lawyer’s bodies to refrain from participating in the protests against the three new laws. Even after the backlashes the new law has come into effect and the first FIR under these laws was also filed just minutes after these laws came into effect. Delhi police registered the first FIR against a street vendor which was later quashed after a review of the case.

Issues with New Criminal Laws

  1. The first and foremost issue with the new criminal laws is increase in powers of the police force by increasing the police custody which according to section 167 of Cr.Pc was 15 days and after that the accused was sent to judicial custody but according to the new laws section 187 of the new BNSS extends this limit to 60 days or 90 days
  2. The pre arrest rights of the accused which were established from the guidelines of the DK Basu case are also compromised such as that “on arrest the officers should wear clearly identifiable name tags and the identity of the interrogating officers should be entered in a register.” This entry in the register of the identity of the interrogating officers is deleted in the Sanhita. Secondly, the provision related to memo of arrest is deleted. Further under the Supreme Court guidelines “the family is to be informed by the police of the place where the arrested person is detained.” This is deleted. Under the guidelines the arrested person “is required to be medically examined on arrest in respect of any injury and an inspection memo prepared which is to be signed by the arrestee and police. The arrestee has to be medically examined in a public hospital every 48 hours.” This is also deleted. All the above mentioned documents including the memo of arrest and the inspection memo is to be sent with the FIR to the Magistrate. “These guidelines should be displayed prominently at all police stations.” This requirement is also deleted in the Sanhita.
  3. The new act replacing Cr.Pc has also moved away from another procedure that was established after the landmark case of Lalitha Kumari on registering of FIR straightaway on the information of a cognizable offence but, according to the section 173 of BNSS the police has to conduct a preliminary enquiry before registering the FIR which can lead to harassment and corruption by the police.
  4. 4. Another aspect of the new criminal law that is of contention in this regard is The provisions on “false and misleading information” (section 197) and “acts endangering sovereignty, unity, and integrity of India” (section 152 as the replacement for sedition) the provisions have been made extremely vague in nature. Which causes ambiguity and give the police an opportunity to misuse the laws and taking away the civil liberty of the people.

The Way Ahead

The passage of three criminal bills is certainly a watershed moment in India’s legal history. The new criminal justice system attempts to cleanse the criminal jurisprudence of the colonial mindset. With various deletions of colonial terminologies such as British India, Queen, British calendar, et. al. the legislature has paved the way for reforming the legislative text.
However, the criminal bills also showcase a missed opportunity, considering the vast criminal jurisprudence discussed by the Hon’ble Supreme Court and Law Commission recommendations on topics such as marital rape, non-consensual homosexual intercourse, and gender-neutral adultery, among others.
In conclusion, the imperative for reforms in the criminal justice system is undeniable, as it represents a crucial stride towards fostering a more equitable, just and responsive society. By address systemic flaws, promoting transparency, and embracing evidence-based practices, these reforms not only safeguard individual rights but also contribute to the broader goal of cultivating a system that upholds the principles of fairness and rehabilitation. As we navigate the complex landscape of justice, implementing thoughtful reforms becomes not only a moral imperative but a practical necessity for building a society that values the dignity of every individual and strives towards a more perfect, inclusive and compassionate legal framework.
Also read- A comparative analysis of Old and the new penal laws

Lakshit Rajdev, Intern at S.S. Rana & Co. has assisted in the research of this article.

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